No Harm, No FMLA Interference

​When a terminated employee had been granted all the leave she requested, a federal district court in Georgia rejected her claim alleging interference with the Family and Medical Leave Act (FMLA). It also rejected her FMLA retaliation claim, relying on the employer's evidence of her unexcused absences.

The plaintiff suffered from vascular tension headaches throughout her 10 years of employment with the City of Warner Robins, Ga.'s police department. Sometimes her headaches were so severe she was unable to report for duty. The plaintiff asserted that she first informed the chief of police about her headaches in 2006.

In the last years of her employment, the plaintiff violated multiple attendance-related departmental policies, resulting in several disciplinary actions. In the first three months of 2009, the plaintiff exhausted 41 hours of sick leave and 44.5 hours of annual leave, resulting in a written counseling. The plaintiff maintained that at the time she reiterated to the chief that she suffered from vascular tension headaches.

At the end of 2012, the plaintiff exhausted all her accumulated leave and more than 85 hours of leave without pay due to headaches, the flu and taking her children to visit their father, who was suffering from cancer. In January 2013, the plaintiff was absent from work for two days due to her headaches and requested leave without pay, which was approved. When the plaintiff notified the human resources department that her use of leave was because of her headaches, the flu and visiting her ex-husband, who had cancer, the plaintiff was not provided any information about the FMLA.

From January to September in 2014, the plaintiff had five attendance-related incidents that resulted in disciplinary actions for tardiness, failing to report to work and unbecoming conduct. The disciplinary actions included a letter of counseling, an eight-hour suspension without pay and a demotion, and the plaintiff was placed on a 12-month probationary status. After she took an unauthorized day off work in August 2014, the city terminated her on Sept. 23, 2014.

The plaintiff argued that the city interfered with her rights and retaliated against her in violation of the FMLA. She contended that the city should have known she was entitled to FMLA benefits and failed in its duty to inform her of such benefits. The city countered that it lawfully terminated her due to multiple violations of policies related to tardiness, unexcused absences and misuse of leave.

[SHRM members-only toolkit: Managing Family and Medical Leave]

It is unlawful for an employer to interfere with, restrain or deny the exercise of or the attempt to exercise FMLA rights. However, the employee must provide the employer with notice sufficient to make the employer aware that the absence is due to a potentially FMLA-qualifying reason. Without sufficient notice, the employer is under no obligation to comply with the requirements of the FMLA.

The court found that enough evidence existed to find that the plaintiff provided the city with sufficient notice to trigger its FMLA obligations to inform her of FMLA benefits. But the court explained that the plaintiff must also demonstrate that the denial of the benefit harmed her. Since the plaintiff received all the leave she requested due to her headaches, the court opined, she could not show she suffered any harm and as such could not maintain her FMLA interference claim.

To succeed on an FMLA retaliation claim, an employee must demonstrate that the employer intentionally discriminated against the employee in the form of an adverse employment action for having exercised a FMLA right. Even assuming the plaintiff's requests for leave due to headaches qualified as protected activity under the FMLA, and they were not wholly unrelated to her termination, the court declared that no reasonable fact-finder could find that the city's legitimate, nonretaliatory reasons for her termination were a pretext for retaliation. All evidence showed the city terminated the plaintiff because of her tardiness, unexcused absences and misuse of leave that had no relationship to her headaches. Moreover, the court emphasized that the plaintiff admitted violating the city policies.

Therefore, the court declared, the plaintiff failed to point to any evidence from which a jury could conclude her infractions were not the legitimate basis for her termination.

Gary v. City of Warner Robins, No. 5:16-CV-151, M.D. Ga. (Aug. 10, 2018).

Professional Pointer: Although an employee requesting FMLA leave is required to give notice to the employer, notice is valid only if it is sufficient to make the employer aware that the employee needs FMLA time off.

Roger S. Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.